Navigable Waters, Dams, and Trespassing? How does it work?

[jimithyashford]

So let's say I wanted to fish Lake Linden on the Finely, or a stretch of water on any stream where there is a darn between the last public put in and the upper reaches of the stream.

As far as I can tell on Finely specifically, although I am sure there are other similar streams in the region, there is no public put in above the Lindenlure swimming hole. So there is no way to put in above Lake Linden and float down to it from public access points. But if I put in at the swimming hole, that is below the darn, and portaging above the dam would require, I assume, crossing private property. 

So if you have a stretch of navigable legally floatable water, but with a darn of some kind blocking off a stretch of the stream, does that mean that while those waters are legally floatable, yes, but you are effectively barred from entry? Is there some nuance to it I'm not getting?

[tjm]

I think only the Mississippi, Missouri and Grand Rivers are considered navigable in Mo., designated so prior to statehood, and most of the "floatable" streams are only assumed to be "public thoroughfares" or easement, since the case law requires that each stream be judged on it's on merits in a Court, although some streams have been in court and judged as thoroughfares. It's widely assumed that any stream roughly meeting the Elder vs Delcour would be judged as  such and can be treated as such, but it's not really the law.  Under Elder v Delcour,    I believe that you should have portage rights, but I know that landowners can file trespassing charges even when they are in the wrong, so you might be right but have to go to court to find it out. Or you might just be charged with trespassing and have the charges dropped later, thus avoiding the stream getting into court.  

Lots of past discussions relating to stream laws, for example  https://forums.ozarkanglers.com/topic/31837-missouri-stream-access-law-one-more-time/#comments  and if you read all of that you will find some posts relating to the water you ask about.  Other threads

One of the best summaries  on Mo. stream laws that I know of https://styronblog.com/law/harry-styrons-missouri-stream-law/ 

[jdmidwest]

Does Lake Linden have a boat ramp you can put in to?  Sounds like you are going to alot of trouble and avoiding the obvious.

[Al Agnew]

This is a very interesting question, and one that would have to be litigated to get a definitive answer, sorry.  Elder v Delcour's ruling includes the right to portage around obstacles over private property.  But...does that include going UPSTREAM around a dam?  Does it matter whether there are any public accesses upstream?  

My non-attorney opinion is that it should be legal.  After all, there are two ways to gain access to a stretch of stream.  One is to use a public access.  The other is to get permission from a private landowner to use their land to access it.  If I have a friend 6 miles up the Finley from Lindenlure who will let me put in on his land, I should have the right to float downstream and around the dam to reach my takeout at a public access.  So why would it be any different going upstream from that access?  

But the problem is that it is indeed a gray area, as far as I know.  

And the fact is, this is not the place to ask the question, because none of us know.  The people to ask are the county sheriff and/or county prosecutor, because THEY are the ones who would be arresting you--or not.  So if they tell you you can't do it, then your only other choice is to do it anyway, and then be prepared to fight it in court.

Indeed, although the exact circumstances are lost to time, it's believed that Elder and Delcour knew each other and agreed to get into the conflict and take it to court to get the question of access to smaller but still (somewhat) floatable streams settled.  So you could talk to the county prosecutor and see whether he would be up for setting in motion such a test case in this instance.

But be careful what you wish for.  This is just different enough from the situation in Elder v Delcour that a higher MO court might not use it as a precedent, and decide instead that you DON'T have the right to go upstream around the dam for whatever legal reasons they might invent.

[ColdWaterFshr]

My older sister has a cabin at Lindenlure which i have stayed at a few times in the last 3 or 4 years.  The problems with the party crowd and the public access BELOW the dam and the drug use and litter has been going on for decades.  Above the dam is private property, both sides of the river for quite a ways.  Johnny Morris owns most of the south side at the lake which is undeveloped and hopefully stays that way. 

I fished above the lake in high school several times knowing that I was trespassing.  Getting there in my rusted out 66 VW bug.  Have painful memories of hiking through the stinging nettles to get to the creek and the refreshing joy of the cool water as relief.  There is a low slab bridge that I think you could put in at, a couple miles above where the lake starts, but probably couldn't leave a car there.  And its skinny water most of the time.  You would have to carry a boat over the dam which isn't a big deal, maybe 5-6 feet?  I don't think any Lindenlure property owners would give you trouble, as long as you don't get out on their land.   The fishing isn't great there anyway.   It used to be very good.  

[gotmuddy]

Unrelated to where your going but relevant because its in the same state....Spring creek starts on Cloud 9 ranch in ozark county, on private property, and flows into the NFoW. According to the state, the area below what we call the "tubes" is designated as a navigable waterway, and the section above it is not.

 

[ColdWaterFshr]

When you say "according to the state" . . . is that printed somewhere? 

[gotmuddy]

2 hours ago, ColdWaterFshr said:

When you say "according to the state" . . . is that printed somewhere? 

Sorry, that was what the corps of engineers(not the state) told us years ago when we were looking at a project with the creek.

[tjm]

Federal definitions of navigable waters all seem to hinge of commerce, and lack of commerce would likely make any water arising on private land  non-navigable until it exits the private land and passes a public access where it would become available for possible commercial use.    

[BilletHead]

 Logs were floated down many creeks as well as fur trappers doing thier things. Would this be commercial use? This land was opened up by fur trappers. I'm talking anything that can be floated in a raft of canoe. Personally I would draw the line when all you did was drag across many gravel bars and downed trees.